Imagine if your ISP charged a fee for uploading video to a service like YouTube. Or imagine an arrangement under which accessing services like YouTube required you to upgrade to a higher tier of internet service.

Free Press is a media reform group based in Washington, D.C. that’s fighting to stave off this dystopian future. Under proposed “net neutrality” rules, ISPs would be required to treat all internet traffic equally, preserving the end-to-end principle that’s been a key characteristic of the internet. But the newly introduced Internet Freedom Preservation Act is not without its critics. We sat down with Ben Scott, policy director at Free Press, to discuss the importance of the bill and the fear of a non-neutral internet.

Ben Scott, Policy Director at Free Press

Let’s talk about net neutrality. There are different definitions and different ideas about what constitutes net neutrality. But how would you explain it to my grandmother?

I think that neutrality is most easily understood as something that you take for granted every time you go online. When you’re surfing the web and you’re moving from website to website, whether it’s your Facebook page or cnn.com or Amazon, you’re pretty much in control of your internet experience. You can go wherever you want, you can read anything you want, you can watch anything you want, you can hear anything you want, and everyone who is offering content on the internet for you to find is treated the same by the network operator. The phone companies and cable companies that give you access to the internet through their wires have nothing to say about what you do, content-wise, on the internet. That concept is known as network neutrality, and it was built into the engineering when the internet was created. That was the whole idea behind the internet. That’s net neutrality.

Free Press is behind the creation and introduction of a bill called the Internet Freedom Preservation Act, which would mandate net neutrality for ISPs. This isn’t the first attempt at codifying net neutrality. Can you give us a quick legislative history lesson?

Well, through the entire history of the internet—from its invention and development in the U.S government and at research universities in the 60s and 70s, all the way up through the 1990s—the internet was governed by telecommunications law, which contains non-discrimination provisions. And those served as the guardians of network neutrality. In 2005, the Bush FCC deregulated internet access and said these non-discrimination conditions wouldn’t apply anymore. From that point until the present day, we’ve been in a pitched battle to determine whether or not network neutrality rules should apply to the internet, or whether phone companies and cable companies should be able to have control over your internet experience. Since early 2006, there have been a few different efforts to legislate network neutrality. There have been lots of debates at the Federal Communications Commission over whether it should be regulated. And we’ve been in a sort of purgatory where neither side has the political will or the votes to win out.

And that brings us to the net neutrality bill, which was introduced last month…

Yeah. It was introduced the afternoon before the House of Representatives went out of session in July. That bill was introduced by congressman Ed Markey of Massachusetts and Congresswoman Anna Eshoo of California. They’ve been long-time champions of network neutrality, and this time things are going to be different. For the first time in the history of the network neutrality debate, we have a president who supports network neutrality. During the campaign, he said he would “take a backseat to no one” on network neutrality, and that he would seek it out as a priority in his telecom and technology policy agenda. We also have a Congress whose leadership supports network neutrality, including the Speaker of the House. And we have an FCC with a new chairman who supports network neutrality. In fact, he just announced publicly that he was committed to enforcing network neutrality. Now we finally have a political climate in which it appears that network neutrality regulations can finally be implemented.

What, specifically, does the IFPA bill mandate? And how does it get there?

The bill is relatively straightforward. It says it is the policy of the United States to have an open Internet. It explains what we mean by that: it has to be non-discriminatory for all consumers and producers of content and services on the Internet. And then it instructs the FCC to go make rules to enforce the new law of the land.

There’s obviously a lot of criticism from the people the bill would seek to regulate. They claim that this might interfere with quality of service engineering and network optimizations; things they need to do to keep the network running. What is your response?

For the whole history of the net neutrality debate, the network owners have made two entirely contradictory arguments, which I think demonstrates the utter bankruptcy of their case. Argument #1 is that network neutrality law is a solution in search of a problem—that no one is talking about changing the Internet, no one is talking about taking control away from consumers. “No one would ever do this. Why do we need a law against it?” That’s argument #1. Argument #2 is, “we have to violate network neutrality, because otherwise Wall Street will never give us the money to reinvest in our network. We have to change the way the Internet works because we have to capture more revenues and more profits off the backs of consumers and producers of Internet content. Otherwise, there won’t be any Internet.” So we’re left, at the end of their speech, with the notion that they will both never violate net neutrality and that they absolutely have to violate net neutrality. Neither of which is persuasive.

We’ve seen some limited instances of intrusive network shaping—most famously, Comcast throttling p2p traffic for some users. Are there other examples of this that would make clear what the risk could be? Are those examples you are communicating to people who don’t have a really strong interest in telecommunications policy?

The Comcast case is certainly the most prominent case. But keep in mind that for the last 4 years since the law was relaxed and this sort of intervention and control over the network has been legal, the Congress and the FCC have been breathing down the necks of the network owners. People have been wary of committing any practice in the market that looks like a violation until after the smoke blows over. So we really wouldn’t expect to see wide-scale violations. Furthermore, the technologies that are necessary to control your Internet experience—speed up certain websites and slow down others to block you from accessing different kinds of content—that technology has really only existed for the last year and a half, two years. What we’re seeing now is these technologies being widely deployed, particularly in the wireless industry. We have examples where certain applications just are outright blocked over the wireless network. Sometimes it’s because they are bandwidth intensive and the network might not be able to handle them, and other times because [certain apps] compete against the company that is running the network.

So for example, a lot of the wireless companies don’t allow you to run voice-over-the-Internet (VoIP) applications on your handheld device because they don’t want you to be using VoIP [as an alternative] and not pay them for voice over your mobile phone. These kinds of anti-competitive practices, these kinds of interventions in the network, are exactly the kinds of business practices that we expect them to roll out if network neutrality goes away. And they are constantly talking to Wall Street and their other investors about what they have in mind to get more money out of the networks—taking it from consumers and producers of Internet content.

The bill is designed to stop these kind of anti-competitve practices at the ISP level—trying to maintain a level playing field when it comes to delivering content and services. But even if there’s a bill to stop that at the ISP level, there is a significant amount of that happening in the background, with dedicated content delivery networks who have peering agreements with big providers. Would IFPA do anything to shape that market?

IFPA speaks specifically to ISPs because that is how the regulations are set up. However, content delivery networks and the like operate on a different set of operational principles entirely. Putting your stuff on a content delivery network means putting your content closer to consumers in physical space, by moving the server that has the video or a website or a song in a closer geographic location to your consumers. That does improve the quality of your web site’s load time. But once you put your content on the network, then the network is required to treat that content the same. So we’re much less concerned about these content delivery networks than we are about prioritization baked into the network itself. It’s also true because the content delivery network services are by and large available to anyone, including small guys who buy into them on a pooling basis. Now the peering arrangements and the transport agreements that govern interconnection between the network are certainly a source of concern. Those would be governed by nondiscrimination conditions, although it’s not exactly clear how the regulations would work. We haven’t yet seen potential violations at that level of the network. So we’ll have a wait and see attitude on that, but we’ll certainly be vigilant.

Speaking of content delivery networks—they’re a very important part of how video gets delivered. Video is obviously a very high-bandwidth activity and so carries a bit more weight potentially in the whole debate. How central do you think internet video has been, and is, in the subtext of this debate?

Oh, huge. It’s huge because a lot of these telephone and cable companies that offer you internet access also sell you cable television. They make a lot more money from selling cable television than they do from selling broadband. They would very much like you to continue to pay them to watch cable TV. The trend in the market is technology-saavy consumers stopping their cable TV subscriptions and getting the video that they want from the internet. People watching video online is something that scares the pants off of cable companies.

It is, from an objective perspective, inevitable that this would happen—that the cable television market would come undone at the seams as people find more and more of the video they want online. I think more and more [ISPs] will just decide to build out bigger broadband networks, but it is going to be up to the regulatory structure to determine who gets to have the most control over that—and whether we see a natural transition into a competitive market for video where Hollywood studios no longer have monopoly over the cable television platform. [We're headed for] an online television platform where everybody competes on the merits of their content. Now, that could either happen sooner or later, but the speed at which it happens is largely going to be determined by policy decisions.

A few of the big ISPs, including Comcast and Time Warner, have talked about creating a managed channel on the internet for the high level, Hollywood-produced content. They call this initiative TV Everywhere. Is this troublesome from your perspective?

If they are prioritizing TV Everywhere—if they’re giving their content favorable treatment on the network vis à vis other video, it’s totally unacceptable. It’s a straight up violation of network neutrality. If they’re putting their content behind a pay wall and charging you to get access to it, but treating it like everyone else’s content, then it’s less problematic. I think it’s still very shortsighted on their part. TV Everywhere is going to be a blip on the radar of the history of online television—a failed experiment. But we should be very, very careful because I think they’re playing with fire—both in terms of open and neutral networks, but also in terms of anti-trust law.

Are there interests besides the network operators that want to defeat IFPA, or does opposition seem to be concentrated with network operators?

The big Hollywood studios are all opposed to network neutrality. They believe it will limit their ability to stop copyright piracy. Our view is that that’s a spurious argument. Network neutrality and the non-discrimination rules that have preceded it have never applied to illegal content, only legal content. It is perfectly appropriate for a network operator to block spam. It’s perfectly appropriate for them to accept a warrant from law enforcement it they find somebody who’s commiting illicit activities—child pornography, criminal activity. Similarly there are ways to address, in the criminal justice system, copyright infringement. But using a network solution which surveils the content of every communcation that travels over the internet, with the sole purpose of trying to take the copyright-infringing needle out of the haystack, seems preposterous. And in addition to being technologically impossible, it’s a violation of all kinds of privacy protections. And all of this before you get to the question of network neutrality.

In other words, that kind of network filtering does not fall within the scope of IFPA?

Well, no. Under the terms of the IFPA, if you were able to create a copyright filter that was 100% accurate and blocked only infringing content, then it would be legal. That technology doesn’t exist. It may never exist. That said, the IFPA explicitly refers to “lawful content.” That lawful content distinction is meant to convey that if law enforcement comes to an ISP with a signed warrant, with reason to believe someone is stealing something, that kind of enforcement doesn’t run afoul of the IFPA. That is appropriate—a system whereby law enforcement addresses infringement, rather than network providers trying to shape behavior.

Is there valid criticism of IFPA that’s not coming from industry lobbyists? Some argument against the IFPA as it exists that perhaps you don’t agree with substantively but can entertain on its merits?

I think the most legitamate concerns are those from technologists who have a libertarian bent. These folks are very concerned about the government becoming involved in regulating the internet. They fear content regulations. I share the same concerns, but in my view, network neutrality is not regulating the internet. It’s regulating the wires that bring you access to the internet to make sure that your internet access is unfettered. It is the opposite of regulating the internet; it is protecting the internet from exploitation from commercial market interests.

So, in other words, this isn’t something like the Fairness Doctrine that libertarians should be afraid of?

Not at all. It is the opposite of the Fairness Doctrine. The Fairness Doctrine tells you what you can and can’t say. Net Neutrality says no one can tell you what you can and can’t say.

Are there thing that both sides of the network neutrality debate can agree on? Are there things that they agree on?

I think in principle, most of the parties involved in this debate agree that networks should be open. That, for the most part, the internet should function the way that it has so successfully for the last twenty years. I think where ways part is over how much control commercial interests, that own the networks, should have over content and services. To what extent should gatekeepers be permitted on the internet? To what extent should we allow business models that look like cable television, broadcast television and print publishing to migrate onto the internet platform? And that is a fundamental question and a question of principle that I think is not conducive to compromise or half measures. You’re either fully open or you’re not open, there’s no real in-between spaces.

The idea of participatory media and public media, the Thomas Paine idea of an open platform for political participation and creative expression, is really implicit in the mission of Free Press. Beyond IFPA and network neutrality, what else do you think will be necessary to create this space from this kind of engagement?

I think you have three basic elements. One is make sure the network is open and that it’s open to everybody. And that we have these principles of non-discrimination governing.

Second, we need to make sure our networks are high-bandwidth—that they’re fast enough to handle all of the content and services that we want to use, not only today but going forward—and that we’re anticipating a steady increase in the amount of bandwidth demand for people who want to use the newest video services on the internet.

And third, we need to make sure that our networks are affordable. Increasingly the internet is not just a nifty commercial service that people like to have; it is the basic infrastructure of our information society. Not being connected is a huge economic and social disadvantage. So, it is incumbent upon policy makers, who are looking at broadband policy, not only to make sure the networks are open and fast, but that they are affordable and accesable so that we have very high adoption rates and we’re not creating an implicit digital divide.

How can people who want to support Free Press and its mission help in the fight for net neutrality?

I would encourage everybody with an interest in the issue to check out http://freepress.net. That’s our main site with all of our ideas and all of the information about how to get involved with goverment policy-making. We also run a coalition called http://savetheinternet.com which has information specific to network neutrality and the network neutrality campaign. Getting involved is a simple as going online and signing up. You can choose whether you want to spent two minutes a week or ten hours a week working on these issues as we try to bring them over the finish line and try to protect the internet in perpituity.

Thank you so much for taking the time to answer these questions.

You’re very welcome.

You can read the bill here.